Preliminary Injunction Order In Actavis Casts A Skeptical Eye Toward The "Hard Switch"

Last week, we briefly reported on the injunction granted by the U.S. District Court for the Southern District of New York in the New York Attorney General's "product hopping" suit against Actavis and its subsidiary, Forest Laboratories LLC. On Monday, the court held a hearing on the injunction and released a copy of its decision (portions of which are redacted from public view). The injunction requires Actavis to continue distributing the immediate-release tablet version of its dementia drug, Namenda, while the lawsuit is litigated. The court's decision in this case—the latest in a series of "product hopping" cases we have covered in recent months—is sure to have widespread implications for future cases, particularly those in which pharmaceutical companies have discontinued one formulation and introduced a new formulation before the entry of the generic version of the old formulation (known as a "hard" or "forced" switch).